Judgment G.N.PRASAD, J. 1. The prayer of the petitioners in this application is that the order of Shri B.N. Charan, a Magistrate exercising first class powers at Sitamarhi dated 4th November, 1968, taking cognizance of an offence under S.395 of the Indian Penal Code alleged to have been committed by the petitioners, be quashed. 2. On the 28th August, 1967, one Tarkeshwar Chawdhary lodged a first information report at Belsand Police Station in respect of an occurrence which had taken place at his house which was raided by six named and fifteen unnamed persons. Among the named culprits were five of the present petitioners. On this report, the officer-in-charge of Police Station registered a case under Ss.147, 148, 323 and 380 of the Indian Penal Code. Subsequently upon visiting the scene of the occurrence the Investigating Police Officer realised that the case should have been registered under S.395 of the Indian Penal Code. He took the statements of the different prosecution witnesses and ultimately submitted a final report indicating that it was a case of a mistake of fact. This final report, which was dated the 20th June, 1968, was received in court on 19th July, 1968 and after a consideration thereof the learned Magistrate passed the impugned order on the 4th November, 1968. 3. In order to appreciate the point taken on behalf of the petitioners, it is necessary to mention that the Magistrate, Shri B.N. Charan had been empowered to take cognizance of offences under cls.(a) and (b), but not under cl.(c), of Sub-S. (1) of S.190 of the Code of Criminal Procedure. The impugned order contains a statement that the learned Magistrate took cognizance of the offence under S.395 of the Indian Penal Code in exercise of his powers under S.190(1)(b) of the Code. 4. Mr. Jogendra Misra, appearing in support of this application contends that Shri Charan has really taken cognizance under cl.(c), which he had no authority to do, since a perusal of his order shows that while dealing with the final report submitted by the Investigating Officer he had also perused the materials contained in the Police diary and made use of the supervision notes prepared by the Deputy Superintendent of Police and the Superintendent of Police. The argument is that from the circumstance that the learned Magistrate made use of the materials contained in the Police diary and the supervision notes the position in law would be that he has taken action under cl.(c) and not under cl.(b) of Sub-S. (1) S.190 of the Code. 5. This contention is sought to be supported by the decision of the Supreme Court in Abhinandan Jha V/s. Dinesh Mishra, AIR 1968 SC 117 , where their Lordships have dealt with the question as to what would be the position when a Magistrate dealing with a report submitted by the Police to the effect that no case had been made out for sending up an accused for trial finds himself unable to accept the view taken by the Police. At page 122 of the report their Lordships have observed - "But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S.156(3), to make a further investigation. That is if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under S.156(3). The Police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under S.190(1)(b) notwithstanding the contrary opinion of the Police, expressed in the final report". If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under S.190(1)(b) notwithstanding the contrary opinion of the Police, expressed in the final report". It will be noticed that their Lordships of the Supreme Court have recognised the powers of the Magistrate to form his own opinion upon the materials contained in the final report submitted by the Police where there has been a complete or full investigation and further investigation is not considered necessary, in other words, if the final report submitted for consideration of the Magistrate after full investigation discloses statements of fact constituting a cognizable offence, it is open to the Magistrate under clause (b) of S.190 to differ from the opinion formed by the Police and take cognizance upon those very materials. This position in law has also not been disputed by Mr. Misra. The contention of Mr. Misra; however, is that a perusal of the order of the learned Magistrate would show that he has really acted under clause (c), inasmuch as he had looked into the materials other than the final report. In support of this contention Mr. Misra has laid stress upon the following observations contained in Abhinandan Jhas case AIR 1968 SC 117 at page 123. ".........There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance under S.190(1)(c) of the Code........It is open to the Magistrate to take cognizance of the offence, under S.190(1)(c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed........." Having perused the final report and the order of the learned Magistrate in the present case, we are satisfied that the Magistrate acted under clause (b) and not under clause (c). The final report of the police set out at length the facts of the case, a substance of the evidence of the prosecution witnesses and other relevant materials and even made reference to the directions of the Superintendent of Police. The final report of the police set out at length the facts of the case, a substance of the evidence of the prosecution witnesses and other relevant materials and even made reference to the directions of the Superintendent of Police. While dealing with the question as to whether the view taken by the Investigating agency was fit to be accepted or not, the learned Magistrate had to apply a judicial mind to the materials placed before him. It was in that context that he made some comments upon the materials contained in the police diary and the supervision notes of the Deputy Superintendent of Police and the Superintendent of Police. Since a direct reference to the Superintendent of Polices supervision note was to be found in the final report which the learned Magistrate was considering, it was only fair that he should have looked into the supervision note of the Superintendent of Police. It is true that the supervision note of the Deputy Superintendent of Police was not referred to in the final report and, strictly speaking, the learned Magistrate while dealing with the case under cl.(b) was not entitled to look into this document. But a perusal of the learned Magistrates order leaves no room for doubt in our mind that the learned Magistrate was not dealing with the matter under cl. (c). For example in paragraph 9 the learned Magistrate observed as follows : "Coming to the evidence recorded by the I. O. and also examined by the Dy. S.P., I need hardly say that the evidence proves that the alleged dacoity did really take place. Of course there are some persons who heard the story from the informant and his men but the evidence of inmates and even neighbours who saw the occurrence and who could not be of any help due to dacoits prove the facts like mirror. Even a reading of the Final Report gives the same impression....." In this context I may refer to certain observations of S.K. Sen, J. in A.K. Roy V/s. State of West Bengal, AIR 1962 Cal 135 (FB). In that case the question referred for decision to a Full Bench was as to whether when the police after investigation had submitted a final report it is open to a Magistrate to direct the police to submit a charge sheet. In that case the question referred for decision to a Full Bench was as to whether when the police after investigation had submitted a final report it is open to a Magistrate to direct the police to submit a charge sheet. The majority view of the Calcutta High Court was that the Magistrate cannot make such a direction to the police, and it will be noticed that this view has been affirmed in Abhinandan Jhas case. AIR 1968 SC 117 already referred to. Dealing with the question now under consideration the learned Judge observed at p. 145 as follows : "......but he can take cognizance on the statement of facts contained in the final report, and for the purpose of deciding whether further action should be taken, he may refer to the police diaries of the case including the statements under S.161 of the Code, and if satisfied that there is a prima facie case against one or more accused he may issue process or in the alternative direct the police officer to produce them before the Court if the accused are on bond taken by the police. Cognizance cannot however be taken on the materials contained in the case diaries independently of the final report." If I may say so with respect, this represents the correct position in law which is relevant for our present purpose. The final report contains a summary of the statements of the witnesses and also refers to other materials. In applying his judicial mind to the final report, the Magistrate is perfectly justified in looking into the materials which are specially referred to in the final report. From the fact that he refers to the materials referred to in the final report it would not be legitimate to hold that he has relied upon those materials independently of the final report. It would have been a different matter if in the present case the final report did not set out the relevant materials to bring the case under cl.(b) but both the order of the learned Magistrate as well as the final report leave no room for doubt that the relevant materials were available in the final report itself so as to give jurisdiction to the Magistrate to proceed under cl.(b). That exactly has been done in the present case. That exactly has been done in the present case. It cannot legitimately be urged that the moment the Magistrate has referred to some materials about which reference is to be found in the final report he would be deemed to have acted under cl.(c). The passage in the Supreme Court decision, upon which Mr. Misra relies, does not lend support to such a conclusion. 6 For the foregoing reason, I am satisfied that no case has been made out for interfering with the impugned order. The application, therefore, fails and is accordingly dismissed. S.WASIUDDIN, J. 7 I agree.